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1999 DIGILAW 606 (KER)

Krishna Iyer v. Kunnath Chelan Avvokkar

1999-11-25

K.A.ABDUL GAFOOR

body1999
Judgment :- K.A. Abdul Gafoor, J. This is an appeal by the plaintiff who was non-suited at the lower appellate stage. While admitting the Second Appeal this Court formulated two substantial questions of law. Those are as follows: "(a) Did the Court below apply the principle of res judicata correctly. (b) Did the Court below correctly apprehend the meaning of the expression'court of limited jurisdiction'." The phrase used in the 2nd question of law is as contained in Explanation VIE to S.11 CPC. In effect both the questions of law are centered around the principle of res judicata. 2. It is not in dispute before PH that parties to the present suit were also parties to O.S.114/1975 which reached up to this Court in CRP 2942/78. That was a suit for damages wherein defendant No. 2 in the said suit who is none other than the defendant in the present suit contended that the property out of which damages were claimed had been owned by him based on a title. The damages were sought for by the plaintiffs on the ground that the defendants therein had unauthorisedly plucked cashew nuts from that property. The plaintiffs set up a case of absolute possession and ownership; whereas the defendants set up the case based on title: The suit was decreed. The present defendant took up the matter in appeal as A.S.198/ 76. That appeal was allowed. In that appeal, according to that Court, the issue cropped up was also as follows: "Incidently the question of title also arises for consideration and it assumes some importance in the case in view of the nature of the land and the nature of the cultivation carried on there." The Court also found that: "Since both parties claimed title and possession over the disputed land, the property has to be properly identified with reference to the boundaries and other descriptions contained in the title deeds produced on both sides". The Court also formulated a point in para 5 of the judgment as follows: "The points to be decided is whether these plots are comprised in Ext. Al and whether they are in the possession of plaintiffs. It has to be seen whether these plots are comprised in the documents on the strength of which defendants claimed title and possession". After examining the Commission report, the plan and other evidence on record including Exts. Al and whether they are in the possession of plaintiffs. It has to be seen whether these plots are comprised in the documents on the strength of which defendants claimed title and possession". After examining the Commission report, the plan and other evidence on record including Exts. B13 and B14 (which are marked as Ext. B6 and B7 in the present suit) it was found that: "The title and possession of the 2nd defendant over plot DBF and Fl had there been established beyond doubt. The plaintiffs have no right or title over these plot". This is the categoric finding, with regard to the title over the property in question arised in the said previous suit. Even though it was a suit for damages, it was necessary to consider the question on title as mentioned above. 3. The property thus found to be in the enjoyment, possession and ownership of the 2nd defendant in that suit, who is the defendant in the present suit, is the subject matter of the present suit for recovery of possession. Thus there is no dispute that the subject matter of the present suit was also part of the subject matter of the earlier suit and the title to that property was also in issue between the parties, in the earlier suit. 4. The contention raised by the appellants is that, that being a suit for damages, the issue relating to title, in the said suit, cannot be termed as one that had directly and substantially arisen in that suit between these parties; because it was only a suit for damages. So the said judgment confirmed by this Court in CRP 2603/78 cannot stand in the way of the plaintiff to sue for recovery of possession, as res judicata. The said judgment was challenged in CRP because the amount decreed was less than Rs. 3000/.and therefore a second appeal could not have been filed in terms of S.103 of the CPC. 5. As held by this Court in Sreedharan v. Unnitha (1985 KLT 181) and in Cheru v. Choyikutty (1988 (2) KLT 727) when both the parties had went on trial including on issue regarding title and possession and when a judgment is rendered on that issue, when it had become final, the principle embodied in S.11 CPC shall apply in respect of the subsequent suit between the said parties. It was held in Sreedharan v. Unnitha (1985 KLT 181) that: "The point whether a matter was directly and substantially in issue in the former suit is to be decided with reference to the facts and circumstances of each particular case. It is essentially a question of fact. If the parties and the court considered the matter as if it formed a direct and principal issue, it must be taken to have been directly and substantially in issue." As mentioned above the court understood the point and found that it was essential to decide the dispute regarding title between the parties, to finally adjudicate the quantum of damages claimed by the plaintiff. Therefore the parties went on trial on that aspect and invited a finding which was essential to resolve the issue. So it cannot be stated that the issue on tide decided in the said earlier suit was not one directly and substantially in issue in that suit. 6. In a suit for injunction, the issue regarding title may not be of much importance, because the dispute will have to be resolved based on possession. Even in such circumstances, when there was adjudication on title, this court had found that it will operate as res judicata in subsequent suit. A Division Bench of this court in Cheru v. Choyikutty (1988(2) KLT 727) held as follows: "By the nature of this suit and on the basis of the pleadings, although the relief sought was confined to injunction, the issue on title was relevant in so far as the dispute related to a narrow strip of land lying between properties admittedly in the respective ownership and possession of the plaintiff and the defendants. Both the parties without protest went to trial on all the issues, including the issue relating to title. A decision was rendered on that issue and that decision remained unchallenged. The principle embodied in S.11 of the CPC applied to the facts of this case." In Sulochana Amma v. Narayanan Nair (1994(2) SCC 14) the Supreme Court held that: "It is settled law that in a suit for injunction when title is in issue for the purpose of granting injunction, the issue directly and substantially arises in that suit between the parties. When the same issue is put in issue in a later suit based on title between the same parties of their purview in a subsequent suit the decree in the injunction suit equally operates as res judicata." Therefore even the decree founded on equitable relief, if one issue arose directly and substantially is decided by the court and attainted finality, it would operate as res judicata in a subsequent suit based on title where the same issue directly and substantially arises between the parties. 7. Circumstances are similar, in the case on hand, when the parties went on trial with regard to the issue relating to title in a suit for damages and where the decision on that issue was very material and essential. That finding had been confirmed by this Court and thereafter it remains unchallenged. In such circumstances the plaintiffs cannot avoid that finding to contend that it does not operate as res judicata. 8. The court which tried the earlier suit namely O.S.114/75 is a duly constituted civil court. It cannot be contended, as contended by the appellants, that it was a court of limited jurisdiction. It was a court empowered to consider the issue on title as well. Merely because only damages were agitated in that suit, that court cannot be termed as one of limited jurisdiction. The limitation imposed on the plaintiff was only with respect to the filing of S.A. as the pecuniary limit was less than Rs. 3000/.. Merely because second appeal was barred in terms of S.103, against Ext. B20 decree, it cannot be stated that, that court was a court of limited jurisdiction. Therefore there arise no question of any finding by a court of limited jurisdiction as contended by the appellants. A Division Bench of this Court in Devaki Amma v. Kunhiraman (1980 KLT 690) held that: "The expression "a court of limited jurisdiction" is wide enough to include a court whose jurisdiction is subject to a pecuniary limitation and it will not be right to interpret the said expression as connoting only courts other than ordinary Civil Courts. Such a narrow and restricted interpretation is not warranted by the words used by the Parliament." In such circumstances the court which tried the suit which finally resulted in Ext. Such a narrow and restricted interpretation is not warranted by the words used by the Parliament." In such circumstances the court which tried the suit which finally resulted in Ext. B20 decree cannot be termed as a court of limited jurisdiction and the lower court did not go wrong in applying that decision as res judicata against the plaintiffs. The substantial questions of law raised are therefore answered against the appellants. Appeal fails and is dismissed.